How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33323
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
13262538
Type Your Family Law Question Here...
Clare is online now

I have a question regarding jurisdiction for divorce under

Customer Question

I have a question regarding jurisdiction for divorce under the EU Brussels II convention.

The convention states that the country where divorce proceedings are initially started takes priority. I have lived in the UK for the past year and want to start divorce proceedings against my wife who lives in Ireland. Unfortunately in Ireland you have to be separated at least 4 years before you can even apply for a divorce which could then take another year to process, and it is extremely expensive too. We are over 3 years separated and I would like to start proceedings from the Uk however there may be one obstacle. About a year ago my wife applied for a 'judicial separation'. She soon realised it was pointless and that waiting until eligible for divorce would be better. However, in her applying for a 'judicial separation' is that initiating family law proceedings ie starting the application for divorce and hence take priority? Or that fact that she hasn't applied for an actual 'divorce' as stated in the Brussels II Convention does that mean if I applied in the UK for divorce that the UK would take priority?

So basically my question is, in the Brussels II Convention around divorce is it 'family law' or 'divorce' proceedings initial application that they refer to?
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
Did your wife actually withdraw her application?
Claire
Customer: replied 3 years ago.


No, she served my solicitor with the judicial separation request/order (or whatever it's called) about a year ago but nothing has been done about it. So they haven't been withdrawn. She will want to proceed in Ireland. So does this mean that 'divorce proceedings' have been started in Ireland or not as they are only Judicial separation proceedings? If the EU convention said 'if familiy law proceedings are started in one country that country takes priority then I know I would have no case and Ireland would take priority but instead of 'family law' proceedings it says 'divorce' proceedings. I just want to clarify if I can start divorce proceedings in the UK,


 


Many thanks,


Pauric

Expert:  Clare replied 3 years ago.
Hi
The issue for precedence is the nature of the proceedings - so if you had wished to try for Judicial Separation in the Uk then you could not have done so - but since what you want is a Divorce you can!
Claire
Customer: replied 3 years ago.


wow Claire! I wasn't expecting that! I had spoken to my family lawyer in Ireland who had said to me that as 'family law' proceedings had been initiated in Ireland that they would take priority. The wording of 'divorce' in the convention covered all 'family law' matters including 'judicial separation' as in this case. So as you can see I need to be 100% on this one. Is there any where that proves this or any precedence or any exact leglistation that states that it has to be 'divorce proceedings' that the convention is referring to and not any 'family law' proceedings. On what basis are you giving that answer?


 


My sincere apologies if this sounds like I am in any way doubting your answer it's just that it's very hard to get an exact answer on it and the info I have gotten so far is conflicting and I want to be 100% confident before I apply for divorce in the UK with rock solid evidence to base it on,


Many thanks,


Pauric

Expert:  Clare replied 3 years ago.
Hi
Please do not apologise - you are right to question and the truth is that there is an ambiguity in the law ans interestingly I can find no Case law on the issue to refer you to.
It is quite clear that if Divorce Proceedings had been issued in Ireland then they would take precedence - and equally clear that if you issued a Divorce Petition in the Uk and then your ex amended the Judicial Separation process to the Divorce process then the Irish proceedings would again take precedence.
However as things stand the process that has been started is not a Divorce process and as such you can commence one.
However f your ex does not agree then you could face difficult in any event - especially if you chose the Unreasonable Behaviour Route - the only one currently open to you
Claire
Customer: replied 3 years ago.


thanks Claire,


 


I have done some looking up on line too, what I have found is the Brussells II doc (http://www.reunite.org/edit/files/Library%20-%20International%20Regulations/Brussels%20II.pdfhttp://www.reunite.org/edit/files/Library%20-%20International%20Regulations/Brussels%20II.pdf) under Article 19 point 1 it includes the wording 'legal separtion' after divorce. I would assume this means judicial separation too? And hence Ireland takes priority?


 


In Ireland you have to be separated 4 years before you can apply for a divorce which will apply for me on July 13th this year. It then could take a year for it to come before the courts.


 


The Irish divorce system is very complex and old and therefore expensive too mainly due to being a very catholic country. The fact that I now live in the UK I want to be proactive in using more modern laws now at my disposal!


 


Regards,


Pauric

Expert:  Clare replied 3 years ago.
Hi
Brussels II covers Divorce, Nullity and Judicial Separation which are three separate processes.
Since they are not the same process it is open to argument whether or not starting one process prevents you from starting a separate one
There is no case law I can find on the issue - which is why it woudl be worth trying IF your ex will agree a divorce
Claire

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Kasare

    Kasare

    Solicitor

    Satisfied Customers:

    204
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
< Last | Next >
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    204
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/TG/TGraham12/2012-7-17_81212_bigstockBusinessHandshake508163.64x64.jpg Thomas's Avatar

    Thomas

    Solicitor

    Satisfied Customers:

    133
    UK solicitor
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Solicitor

    Satisfied Customers:

    7
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    340
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/GL/Glossolicitor/2013-5-14_214834_TWMParkinsonWright.64x64.jpg Glos solicitor's Avatar

    Glos solicitor

    Family Solicitor

    Satisfied Customers:

    2
    10 years experience in all areas of family law, now specialising in cases involving social services and children
  • http://ww2.justanswer.com/uploads/UK/UKfamsol/My face July 2011.64x64.jpg UKfamsol's Avatar

    UKfamsol

    Family Solicitor

    Satisfied Customers:

    240
    Very experienced specialist family law solicitor, qualifed in 1994
  • http://ww2.justanswer.com/uploads/CH/chathamchamber/2011-4-24_191833_1.64x64.jpg chatham-chamber's Avatar

    chatham-chamber

    Solicitor

    Satisfied Customers:

    182
    LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)